The Republic Vrs High Court, Koforidua (J5/9/2008) [2008] GHASC 17 (22 October 2008);

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA- GHANA

-----------------------------------

 

CORAM:      WOOD (MRS), CJ (PRESIDING)

ATUGUBA, J.S.C

OWUSU (MS), J.S.C

DOTSE, J.S.C

BAFFOE-BONNIE, J.S.C

 

 CIVIL MOTION

NO. J5/9/2008

22ND OCTOBER, 2008

 

THE REPUBLIC

 

VRS

 

THE HIGH COURT, KOFORIDUA       …      RESPONDENT

EX-PARTE: NANA OTUTU KONO III …      APPLICANT

AKUAPEM TRADITIONAL COUNCIL  …      INTERESTED PARTY

_____________________________________________________

 

 

R U L I N G

 

GEORGINA WOOD CJ:

 

I have had the opportunity to read the opinions of my respected brothers and sister in this matter. Unfortunately, I do not agree with the majority views expressed by my respected brethren. To the contrary, I am inclined to agree with the opinion of my brother Dotse JSC. Consequently, it would in my view, be helpful if I briefly stated  my reasons for allowing this application which seeks to invoke the supervisory jurisdiction of the Supreme Court for an order of certiorari to quash the ruling of the High Court Koforidua dated 13th December, 2007.

 

The interested party who was the Plaintiff in the original action sued the Defendants, the Applicants herein for the following reliefs:

 

  1. A declaration that the Plaintiff body is the only lawful and statutory Traditional Council in Akuapim

 

  1. A declaration that the defendants so-called Traditional Council, namely Akuapim Anafo Traditional Council, Okere Traditional Council, and Akuapim Guan Traditional Council respectively are null and void.

 

  1. An injunction restraining the Defendants from using, operating as, dealing in or in any way claiming through the said respective Councils.

 

  1. An injunction restraining the Defendants from claiming to be the Omanhene or Presidents of the said respective Councils.

 

In my thinking, the “claiming through the said respective Councils” referred to in relief 3 can only be related to claim to be an Omanhene as expressed in relief 4.

 

The Defendants, after being served with the writ, filed a motion to set aside the writ on the grounds that the High Court, Koforidua lacked jurisdiction to hear the matter as it was one affecting chieftaincy.

 

On the 13th day of December 2007, the High Court ruled on the motion by saying it was not a cause or matter affecting chieftaincy and therefore it had jurisdiction to deal with the matter.

Dissatisfied with the decision of the Court, the Applicant filed a motion invoking the supervisory jurisdiction of the court for an order of certiorari directed at the High Court, Koforidua.

 

The ground was couched in these terms:

 

“That the learned Trial Judge erred in law by holding that the matter before him was not a cause or matter affecting chieftaincy and by reason of the said error wrongfully assumed jurisdiction in a cause or matter affecting chieftaincy.”

 

I must at the outset state that I am not entirely too happy with this formulation. On the surface, it reads like an ordinary appeal ground. But we are here to do substantial justice to the parties. Courts must be wary, in deserving cases, of attaching undue weight to the form or words used in the formulation or presentation of writs, reliefs, claims, causes or matters for judicial relief. Having regard to the claim before us, when purposively read, and given that equity looks to the substance rather than the form, my understanding of this ground is that the judge committed an error of law, which error is so clearly patent on the face of the record, it ought to attract our supervisory intervention. 

 

WHAT IS A CAUSE OR MATTER AFFECTING CHIEFTAINCY?

 

The statutory provisions as referred to by my brother Dotse JSC, namely, the Courts Act, Act 459 s.117(a-e) and the S.76 of the Chieftaincy Act 2008,Act 759 defines a cause or matter as follows:

 

  1. The nomination, election, appointment or installation of a person as a chief or the claim of a person to be nominated, elected, appointed or installed as a Chief.

 

  1. The destoolment or abdication of any chief.

 

  1. The right of any person to take part in the nomination, election, appointment or installation of any person as a chief or in the destoolment o any chief.

 

  1. The recovery or delivery of stool property in connection with any such nomination, election, appointment, installation, destoolment or abdication.

 

  1. The Constitutional relations under customary law between chiefs.

 

COURTS INTERPRETATION

 

There is no dearth of judicial authority on what constitutes a cause or matter affecting chieftaincy. The case law is well settled, and spans many years of scholarly jurisprudence. The

latest in the long line of cases is

 

In re Oguaa Paramount Stool; Gabrah v Central Regional House of Chiefs  & Haizel [2005-2006] SCGLR 193.

This court unanimously speaking through Prof Ocran JSC observed:

 

“It appears from the language of the Chieftaincy Act, 1971 that the litmus test for determining whether an issue is a cause or matter affecting chieftaincy is the existence of a ‘question’ or ‘dispute’ or contested matter, or a cause in the sense of a justiciable controversy, with respect to any of the matters listed therein, and not literally in respect of every matter bearing on chieftaincy…”

                                                                                                                                                                                                        

Though the decision relates to the statutory provisions of the repealed Chieftaincy Act the provisions under S66 thereof, the wording of the corresponding provisions in the  present S76 of Act 759 being  the same, the  principle in the Gabrah case represents the correct statement of the law.

 It is provided by the Courts Act, Act 459 in Section 57 as follows:

 

“Subject to the Constitution, the Court of Appeal, the High Court a Regional Tribunal, a circuit Court and a District Court shall not entertain at first instance or on appeal, a cause or matter affecting Chieftaincy.

 

See also THE LAW OF CHIEFTAINCY IN GHANA, 2008 by Justice S.A. Brobbey @ pg 232. The learned author writes:

 

“Another criterion for determining whether or not a case is a cause or mater affecting chieftaincy is this: If  evidence on how the party was nominated, elected, selected, enstooled or enskinned, deposed or abdicated has to be adduced before the issue raised in the case can be determined, then the case is most certainly a cause or matter affecting chieftaincy.”

 

The learned author continues at pg 233 thus;

 

“For instance, if a petitioner alleges that the respondent is a divisional chief, while the respondent maintains that he is a paramount chief, before a conclusion can be reached as to which is the correct status of the respondent, evidence has to be led to prove how the respondent was nominated, elected, selected, enstooled or enskinned, the actual ceremonies performed, the oath he took, to whom he swore allegiance, the subordinate chiefs who swore oath of allegiance to him etc. Only LI 798 and CI 27 can be used to adduce such evidence. CI 47 and Cap 4 cannot be used to adduce such evidence …”

 

In this application I had two main issues to grapple with. One of them raises this pertinent subsidiary question. What does a court do when faced on a prelimnary jurisdictional legal objection with a mixture of claims, some of which can be determined by the court before which the objection is raised, while the other claims may be dealt with by some other fora? Does the court before which the objection is raised, without exception, has to separate the claims and assign the different claims to their respective fora or may the court assign the entire cause or matter to the one tribunal where the facts and the law show that that tribunal has jurisdiction to deal with all the claims?

 

The issues for determination in this matter will be:

 

  1. Whether or not there is only one traditional Council in Akuapem or there are four traditional Councils.

 

  1. Whether or not the Defendants are Paramount Chiefs or Divisional Chiefs.

 

The trial judge held that the issues raised for determination did not fall within the definition of a “cause or matter affecting
Chieftaincy” and therefore the issues were justiciable by the High Court. That may well be so. Again, the trial Judge rightly in my view observed that, Traditional Councils are a creature of statute. It may properly be concluded that that the issues as to whether or not the Akuapim Traditional Council is the only Traditional Council in Akuapim and the issue touching on the legality or otherwise of the other traditional councils are all properly laid before the High court, as it is rightly clothed with jurisdiction to deal with the matters raised in the claims.

But, it is important that bear in mind that it is possible to couch a purely commercial or labour dispute as a human rights matter, so can we couch a cause or matter affecting chieftaincy as one not falling into that category. A court’s duty at all times is to be on the alert and unmask such clever undertakings or camouflages so that cases may be assigned to their proper forum.

There is no doubt that the reliefs 3 and 4 of the original action, which indeed are the main or real matters in contention,  fall within the ambit of causes or matters affecting chieftaincy. Relief four on Plaintiff’s writ brings up the issue of whether or not the Defendants are Paramount Chiefs as the statutory requirement is that they must necessarily be Paramount Chiefs before they can head a Traditional Council.

This takes me back to the subsidiary issue I raised, do we separate the claims and have both the High Court and the Judicial Committees of the Traditional Councils deal with different aspects of it? I do not think we need to handle this case in this strict categorisation and separate the two classes those to be handled by the court and those by the other forum.

 Firstly, the first two claims are mere declaratory reliefs. This does not detract from their value, but the truth remains that declaratory judgments as we know too well are unenforceable. They lack teeth and cannot bite. Thus the real or substantial matters in this case are the reliefs 3 and 4. In a manner of speaking, the first to reliefs are mere appendages and have not much to offer by way of judicial relief. The importance of the reliefs 3 and 4 to the plaintiffs ought not to be lost on this court one. There would have been no point in tagging on the reliefs 3 and 4 if the reliefs 1 and 2 were the be all and end all and truly satisfied the plaintiffs’ needs. Even so, they carry “causes or matters affecting chieftaincy” nuances or underpinnings. The pleadings which are annexed to these proceedings and which as I shall demonstrate shortly forms part of the record, bears ample testimony that at the heart of this controversy lies matters affecting chieftaincy.

 Among other things, courts have a duty to avoid a multiplicity of suits and promote judicial harmony. But then also, it is imprudent to have two separate adjudicatory bodies dealing with different aspects of a substantive matter with interrelated issues. What if they gave conflicting or two different irreconcilable opinions? Again if we examined the social policy reasoning behind the vesting of jurisdiction in these specialised tribunals to deal exclusively with matters affecting chieftaincy, then we clearly see the wisdom in going beyond this strict separation and referring the entire matter to the appropriate body mandated with chieftaincy. Indeed, it sound judicial case management practice will not approve of a situation where both the High Court as well the Judicial Committee handled separate but closely related aspects of this one case.

 The second crucial issue raises this critical issue: why did the aggrieved persons not appeal; why seek the court’s supervisory jurisdiction, given the clearly well settled principle that some errors are subject to correction only via the appellate route?

This question is linked to the broader issue of what constitutes an error of law patent on the face of the record.

In the case of Republic v Court of Appeal, Accra ex parte Tsatsu Tsikata [2005-2006] SCGLR 612, I adopted the reasoning of my learned brother Justice Date-Bah in the case of Ex Parte Industrialization Fund for Developing Countries [2003-2004] SCGLR 348 and I reiterate it here.

“Where the High Court (or for that matter the Court of Appeal) has made a non-jurisdictional error of law, which was not patent on the face of the record (and by the ‘record’ was meant the document which initiated the proceedings, the pleadings, if any, and the adjudication, but not the evidence nor the reasons unless the tribunal chose to incorporate them) the avenue for redress open to an aggrieved party was an appeal, not judicial review. Therefore, certiorari will not lie to quash errors of law which were not patent on the face of the record and which had been made by a superior court judge who was properly seised of the matter before him or her” In that regard, an error of law made by the High Court or the Court of Appeal, would not be taken as taking the judge outside the court’s jurisdiction, unless the court had acted ultra vires the Constitution or an express statutory restriction validly imposed on it.”  

 

The record in these proceedings, that is the writ, the pleadings and the reasons all show the action was a chieftaincy matter., camouflaged as a no –chieftaincy cause. On the peculiar facts of this case, it augurs ill for judicial economy to separate the claims. In any event the in my opinion, the reliefs 1 and 2 are so intertwined with the reliefs 2 and 3 they form a whole.  As rightly found by my learned brother, there is a patent error of law on the record justifying our supervisory intervention, for which reason I will grant the application.

 

 

 

G. T. WOOD (MRS)

(CHIEF JUSTICE)

 

 

 

 

 

 

 

 

 

 

 

 

 

ATUGUBA J.S.C:

 

This is an application for an order of certiorari directed to the High Court Koforidua to quash a ruling of John Bentil J dated the 13th day of December 2007 on the ground   “That the learned trial judge erred in law by holding that the matter before him was not a cause or matter affecting chieftaincy and by reason of the said error wrongfully assumed jurisdiction in a cause or matter affecting chieftaincy.”

 

The background to this matter is that the interested party, the Akwapem Traditional Council, on the 18th day of June 2007 issued a writ in the High Court, Koforidua against the applicant and 2 others claiming as follows:

 

“1. A declaration that the plaintiff body is the only lawful and statutory   Traditional Council in Akwapem.

 

2. A declaration that the defendants so-called Traditional Councils namely, Akwapem Anafo Traditional Council, Okere Traditional council and Akuapem  Guan Traditional Council respectively are illegal and void.

 

3. An injunction restraining the defendants from using, operating as dealing in or in any way claiming through the said respective Councils.

 

4. An injunction restraining the defendants from claiming to be Omanhene or Presidents of the said respective councils”

 

The third defendant to the action brought a motion to set aside the writ on the ground that it is a cause or matter affecting chieftaincy over which the High Court has no jurisdiction. The motion was dismissed, hence this application.

 

Although the trial judge erroneously held that it was necessary to ascertain if the defendants are recognised as chiefs by the minister by notice in the Local Government Bulletin, his eventual conclusion that “The issue before this court is whether or not there is only one Traditional Council or 4 Traditional Councils in the Akuapem Traditional Area. As analysed above, determination of this issue has no relation to Section 66 of the Chieftaincy Act. This Court has jurisdiction to determine same,” is correct. (Emphasis supplied)

 

Cause or matter affecting chieftaincy has been defined in section 66 of the Chieftaincy Act, 1971 (Act 370), which was the existing enactment relating to chieftaincy in Ghana at the time of the action in this case, as follows:-

“In this Act, unless the context otherwise requires, “cause or matter affecting chieftaincy” means a cause, matter, question or dispute relating to

 

  1. the nomination, election, appointment or installation of a person as a Chief or the claim of a person to be nominated, elected, appointed or installed as a Chief, or
  2. the destoolment or abdication of a Chief, or
  3. the right of a person to take part in the nomination, election, appointment or installation of a person as a Chief or in the destoolment of a Chief, or
  4. the recovery or delivery of stool property in connection with nomination, an election, appointment, installation, a destoolment or an abdication, or
  5. the constitutional relations under customary law between chiefs;”

 

None of these aspects of the definition of cause or matter affecting chieftaincy impinges on the issues involved in this case.

The question of the existence, nature and composition of a traditional council has consistently been judicially regarded as a statutory or administrative matter which is not a cause or matter affecting chieftaincy. See Republic v. President of Gbi Traditional Council; Ex Parte Torgbe Kwasi Buami VII (1974) 2GLR 427

 

In The Republic v. Techiman Traditional Council Ex parte Tutu (1982-83) GLR 996 CA the facts and decision of the case as stated in the head notes are as follows:

 

“The respondents, the kingmakers of Tanoso, brought destoolment charges against the appellant, the queen mother of Tanoso, before the judicial committee of the Techiman Traditional Council (TTC). She raised an objection founded on want of jurisdiction of the TTC to hear the case because Tanoso did not form part of the TTC but rather the Kumasi Traditional Council (KTC).(Emphasis supplied). Her objection was, however, overruled and the TTC, after hearing the case, gave judgment against her- finding her guilty of all the charges levelled against her. The appellant therefore applied for an order of certiorari to quash the judgment but her application was dismissed by the High Court, Sunyani. (Emphasis supplied). In affirming the decision that Tanoso was within the TTC, the High Court, in its ruling, held in the light of the conflicting Local Government Bulletins for 1977 and 1979 which had placed Tanoso under the TTC and the KTC respectively, its status as to which traditional council it belonged, could be determined by “the traditionally established conduct of the people themselves.”(Emphasis supplied). In the instant appeal against the ruling,

 

Held, allowing appeal: (1) chieftaincy since the British Colonial administration had been governed by statute and that had continued since the independence of Ghana in 1957. In 1958, the legislation which governed chieftaincy was the House of Chiefs Act, 1958 (No.20 of 1958). Section 4(3) of that Act had the Asantehene and the occupants of the stools mentioned in the 3rd schedule to the Act as members of the Ashanti Regional House of Chiefs. There were state councils within the regions. The Asantehene was also the Kumasihene and as such the head of the Kumasi State Council. And the evidence was that as at 1958, Tanoso formed part of the Kumasi State Council. Therefore Tanoso was under the Asantehene as Kumasihene. When the Brong Ahafo Region was created by the Brong-Ahafo Region Act, 1959 (No. 18 of 1959), the Amanhene in the newly created region were made to have their own House of chiefs. It was noteworthy that Tanosohene, not being an Amanhene was not included. For, after the creation of that separate region from Ashanti, the next Act passed to govern Chieftaincy was the Chieftaincy Act, 1961 (Act 81), the purpose of which bring together in one act all the existing enactments relating to chieftaincy which were scattered in the legislative and executive instruments. There were a number of changes in Act 81, e.g. the terms “state” and “state council” were repealed by the terms “traditional area” and “traditional council” respectively. Thus Act 81 created the joint Tano-Subin Traditional Council which excluded Tanoso even though Tanoso was in the Tano-Subin Area. And Act 81 s. 12 provided that a state council in existence at the commencement of the Act was to be converted into a Traditional Council where the state council substantially corresponded to the traditional area and in the case of the Kumasi Traditional Area by section 11 of Act 81, the Asantehene exercised jurisdiction in chieftaincy matters conferred by section 15 of Act 81. (Emphasis supplied). The subsequent enactment, i.e. the Chieftaincy (Amendment) Decree, 1966 (N.L.C.D. 112) which was to be construed with the provisions of Act 81, made certain chiefs in Ghana but did not affect Tanoso. Under N.L.C.D. 112, the Tano-Subin Traditional Council reverted to the Kumasi Traditional Council. (Emphasis supplied).

 

After the Constitution, 1969, the Chieftaincy Act, 1971 (Act 370), was passed to amend the statute law on chieftaincy and to bring it in conformity with the provisions of the constitution, 1969, and to make other provisions relating to chieftaincy. Traditional Councils in existence before the passing of Act 370 were made to continue. The position of Tanoso as coming under the Kumasi Traditional Council was not affected by the Act, and there had not been any legislation which had taken Tanoso from the jurisdiction of the Kumasi Traditional Council since then. The High Court had therefore erred in holding that Tanoso was within the Techiman Traditional Council and that its status could be determined by “the traditionally established conduct of the people themselves.” (Emphasis supplied).

 

At page 1001 Coussey J.A. said: “Traditional Councils are a creation of Statute Law; and whether a particular town or village with its chief belongs or not to a traditional council is a matter which can be ascertained from the statute creating the particular traditional council”.(Emphasis supplied). For this reason he further held at page 1002 thus “There is no significance to the list attached showing the composition of the Techiman Traditional Council at present. It emanates from the Brong Ahafo Regional House of Chiefs which is not vested with authority to create such a council.” (Emphasis supplied).

 

Similarly in Republic v. AnloTraditional Council, Ex parte Hor II (1979) GLR 234 C.A. at 242 Jiagge J.A. stated bluntly thus: “There is nothing arguable about the so-called independent Somey Traditional Area which can only exist when it is created by a legal instrument” She earlier, at page 241, said: “A trial court has the duty to take judicial notice of prevailing legislation and legislative instruments”. (Emphasis supplied). The facts of the case as per the head note are as follows:

“The appellants commenced a constitutional suit before the judicial committee of the Anlo Traditional Council (A.T.C.) against Togbe Hor (T.H.) and some others. In his defence T.H., who had been described and accorded recognition as Fiaga (paramount chief) of Somey Traditional Area (S.T.A.) by the Local Government Bulletin No. 25 of 6 June 1975, claimed among other things that as the paramount chief of S.T.A., the A.T.C. had no jurisdiction over him and furthermore the matter did not arise within the area of the A.T.C. In an application for prohibition directed against the A.T.C. and brought on behalf of T.H. counsel contended that the proper forum was the Volta Regional House of Chiefs because T.H. was a paramount chief. (Emphasis supplied).

 

In affidavits in opposition sworn to by the registrar of the A.T.C. and the appellants respectively, it was averred by both parties that the Anlo Traditional Area over which the A.T.C. had jurisdiction included Somey and also that T.H. was not a paramount chief within the law. The trial judge holding himself incompetent to conduct an inquiry as to the actual status of T.H., confined himself to the publication in the Local Government Bulletin and held as reported in [1978] GLR 105 that T.H. was the paramount chief of the S.T.A.  and was therefore not amenable to the jurisdiction of the A.T.C. on appeal,

          Held: allowing appeal:

  1. “the Somey Traditional Area came into existence in 1962 when  the Minister in exercise of his powers under Act 81,s.12(2) elevated the Somey Stool from its divisional status under the Anlo Traditional Area to a paramount stool. (Emphasis supplied). However in 1966 the stool was reverted to its divisional status and the Somey Traditional Council was accordingly dissolved by N.L.C.D. 112, paras 1(1) and 2. Consequently in the absence of any legal instrument creating a paramountcy out of the Somey stool, the Anlo Traditional Council was competent to exercise jurisdiction over the occupant of the Somey stool in constitutional matters”.(Emphasis supplied)

 

Similarly in Dzaba III v Tumfuor (1978) GLR 18 C.A. at pages 24-25 the court per Anin J.A. regarded the question of the existence, character and composition of a traditional council as purely a statutory matter. Anin J.A. thereat stated as follows:

“Turning to the primary issue whether or not the inferiror tribunal of the eight Kpandu chiefs named in exhibit B who constituted the Akpini Traditional Council and declared the appellant destooled was valid, I entertain no doubt whatsoever that, in the first place, that body lacked legal competence to determine any cause or matter affecting chieftaincy, such as the purported destoolment of the appellant. Under the Chieftaincy Act 1961 (Act 81), the traditional council for the area in question was the Akpini Traditional Council: the pre existing Akpini State Council was deemed to be the traditional council for the area comprehending Wusuta: see section 12(1) of Act 81.(Emphasis supplied). Under the parent State Councils (Colony and Southern Togoland) Ordinance, 1952 (No. 8 of 1952), Sched. II, the component divisions and the Paramount Chief of Akpini State numbered 23. Kpandu which provided the paramount chief of the State had only one representation on the Akpini State Council and Wusuta also had only one representative on the State Council”.

Later, on 30 November 1962, the Minister for Justice (with responsibility for Chieftaincy Affairs) acting under section 12(2) of Act 81 constituted a joint Traditional Council for the area in question under the title “Aveme-Awate-Wusuta joint Traditional Council” with headquarters at Aveme Gbohome (vide local Government Bulletin for 30 November 1962 at pp404-405, item 17). The creation of this new joint traditional area meant the disintegration of the original Akpini State Council and the elevation of the paramountcies, e.g. a new Akpini Traditional Council with headquarters at Kpandu (vid item 10 in the said Bulletin of 30 November 1962)”.(Emphasis supplied).

 

After the coup which toppled the Convention Peoples Party Government in 1966, N.L.C.D. 112 was published on 5 December 1966. Under paragraphs 1 and 2 of this Decree, chiefs like the Wusuta Chief, previously elevated to the Status of Paramount Chiefs, reverted to their former status; in the case of Wusuta, a reversion to divisional status. Traditional Councils then existing in the Traditional area of any such reduced chief immediately before the commencement of the Decree were dissolved. (Emphasis supplied). There was thus a general reversion to the status quo in traditional council set-ups and in the repository of chiefly allegiances. Thus by operation of N.L.C.D. 112, paras 1 and 2, the 1962 joint traditional council of Aveme-Awate-Wusuta became dissolved on 5 December 1966 and the original Akpini Traditional Council consisting of 23 divisions was revived. The quorum for this council was as prescribed in section 16(3) of Act 81; namely, “No business except that of adjournment shall be transacted if less than one half of the total number of members are present.”(Emphasis supplied). Thus, the quorum for the Akpini Traditional Council was at least twelve; that is not less than half of the total membership of 23.

 

In the decision being challenged (exhibit B), the panel comprised eight persons. All the eight persons hailed from Kpandu which was legally entitled to only one representative. Quite apart from the fact that seven out of the eight panellists did not qualify to sit as “members” under section 14 of Act 81, the total of eight persons fell numerically short of the legal quorum of twelve for the Akpini Traditional Council as by law established.”  (Emphasis supplied).

From the foregoing cases it is quite clear that the High Court has jurisdiction to determine the existence, character and composition of a traditional council.

 

 A word needs to be said, for the avoidance of doubt, about relief 4 of the writ in this case claiming, as aforesaid: “An injunction restraining the defendants from claiming to be omanhene or Presidents of the said respective Councils.” (Emphasis added). The nearest affinity that this claim has with a cause or matter affecting chieftaincy is whether it raises any constitutional relations between chiefs. It does not. All it does is to determine the relationship between the alleged paramount chiefs and the alleged traditional councils; do those traditional councils exist? If they don’t then the defendants can’t be omanhene thereof, whether or not they are in fact omanhene at all. The Traditional Council is different in law from the chiefs who constitute it. The traditional council is not a chief though it contains chiefs and is indeed comprised of them. Thus in Ansu-Agyei v. Fimah(1993-94) 1GLR 299 SC, Ampiah J.S.C. delivering the judgment of the Supreme Court found it necessary to draw this distinction at pp. 303-304:

The Dormaa Traditional Council (the ninth respondent herein) had been joined in an action for the refusal of the Omanhene of the Dormaa Traditional Area and the President of the ninth respondent council, to allow the second petitioner to swear the oath of allegiance to him and to restrain the ninth respondent-council from recognising the first respondent as the chief of Wamfie and the Krontihene of the Dormaa Traditional Area. It is obvious that the ninth respondent had been joined to enable the petitioners take their action away from that council”. (Emphasis supplied).

 

This action was commenced in 1984. The relevant Constitution is therefore the Constitution, 1979 as saved. Article 180(2) of the Constitution, 1979 provides:

“(2) The National House of Chiefs shall-

  1. have original jurisdiction in all matters relating to a paramount stool or the occupant of a paramount stool including a queen mother to a paramount stool.”

 

See also section 23(1) of the Chieftaincy Act 1971 (Act 370).

The reliefs sought by the Petitioners have no direct reference to a paramount stool or the occupant of a paramount stool or the queen mother stool. The only reference made to the paramount stool is contained in paragraph (12) of the petitioners’ statement of the facts and particulars upon which they seek to rely for the reliefs sought. It states:

“(12) That the petitioners presented Nana Peprah (installed under the stool name Nana Kojo Peprah) to Nana Agyemang Badu, Omanhene of the Dormaa Traditional  Area to swear the oath of allegiance to him but the Dormaahene for no reason objected to Nana Peprah’s candidature and prevented him from swearing the oath of allegiance.”

The Omanhene is also the president of the Traditional Council. Though customary activities may be carried out at the council’s premises using some of the staff, the swearing of the oath of allegiance is purely customary and is the responsibility of the omanhene qua omanhene and not as the president of the council. References were made to certain letters issued from the council but the source of those letters is the Omanhene. The substance of the petitioner’s complaint is the refusal of the Omanhene to allow the first petitioner to swear the oath of allegiance to him. The Omanhene of the traditional area may have been the proper party to the action and not the traditional council only to plead bias and use that as ground for taking the matter to the regional house” (Emphasis supplied).

 

All this goes to show that it is not every matter that involves a chief that constitutes a cause or matter affecting chieftaincy, see In re Osu Stool; Ako Nortei II (Mankralo of Osu) v. Nortey Owuo III (Intervener) (2005-2006) SCGLR 628.

 

For all the foregoing reasons save the erroneous holding hereinbefore mentioned which is hereby quashed, the application is dismissed.

 

 

W. A. ATUGUBA

(JUSTICE OF THE SUPREME COURT)

 

 

R.C. OWUSU, J.S.C:

By the writ of summons filed on 18th June, 2007,  Akuapem Traditional Council claimed against Nana Djan Kwasi, Aburihene, Nana Asiedu Okoo, Larteh Aheneasehene and Nana Otutu, Kono IV, Adukromhene, the Defendants therein, the following reliefs:-

 

1.       “A declaration that the plaintiff body is the only lawful and statutory Traditional council in Akuapem”

2.       A declaration that the defendants so-called Traditional councils, namely, Akuapem Anafo Traditional council, Okere Traditional Council and Akuapem Guan Traditional Council respectively are illegal and void;

3.       An injunction restraining the defendants from claiming through the said respective councils.”

4.       An injunction restraining the defendants from claiming to be omanhene or presidents of the said respective councils.”

 

The writ was accompanied by a statement of claim setting down the basis for the reliefs sought.

On the 24th of July, 2007, the 3rd Defendant, Nana Otutu Kono III, Adukromhene, filed a motion praying for an order to set aside the writ of summons for the reason that the High Court lacked.  Jurisdiction to hear and determine the matter as same is a cause or matter affecting chieftaincy.

 

In support of the motion, Nana averred in his affidavit that he has the authority of the 1st and 2nd Defendants to depose to matters contained therein, which matters are in any case within his personal knowledge.

 

This was after the Defendants have entered conditional appearance.  On the 13th of December, 2007, the High Court, Koforidua, dismissed the application to set aside the writ of summons holding that;

 

“It is only when the relief claimed is in relation to matters set out in section 66 of the chieftaincy Act, 1971, Act 370 that the matter becomes a cause or matter affecting Chieftaincy.”

 

The court was of the view that the issue before it is whether or not there is only one Traditional Council or 4 Traditional Councils in Akwapim and that the determination of this issue has no relation to section 66 of the Chieftaincy Act.  He therefore ruled that the court has jurisdiction to determine the matter before it and therefore dismissed the application.

 

Dissatisfied with the ruling of the High Court, the Applicant is before this court invoking its supervisory Jurisdiction  under Article 132 of the 1992 Constitution praying for an Order of Certiorari directed to the High Court Koforidua for the ruling to be brought up for same to be quashed as the High Court lacked jurisdiction in the matter.

 

The ground for the application as stated in the body of the motion is that:-

 

“That the learned Trial Judge erred in law by holding that the matter before him was not a cause or matter affecting Chieftaincy and by reason of the said error wrongfully assured jurisdiction in a cause or matter affecting chieftaincy.”

 

In the affidavit in support of the motion, it is the contention of the applicant that the central issue in the matter is whether the Defendants are paramount Chiefs or Divisional Chiefs.  He therefore believes the same to be true that the only way by which that issue can be resolved is by taking evidence to establish whether or not they have been nominated, elected, appointed or installed as such paramount chiefs in accordance with customary law and usage.

 

Following from this the Applicant was firm in his belief that the mater before the trial court is a chieftaincy matter and that is why the court has no jurisdiction to try it.

 

According to the Applicant, the High Court erred in ruling that the matter before it is not a chieftaincy matter and therefore it has jurisdiction to hear it.

 

In his statement of case, counsel for the Applicant argues that having regard to the pleadings of the plaintiff, and the reliefs sought, the matter before the High Court is a matter or cause affecting Chieftaincy since it can only be determined by resort to the Chieftaincy Act, Act.370 and the Regulations made thereunder i.e. Chieftaincy [Proceedings and functions] Traditional Councils Regulations, 1972 [L.I. 798] or the Chieftaincy [National and Regional House of Chiefs] Procedure Rules 1972 [C.E.27].

 

At the time the application was filed, the High Court had only ruled that the matter before it is not a chieftaincy matter and therefore the court has jurisdictions to hear it.  

 

Whether or not the matter is a Chieftaincy matter has been determined by the High Court even though that ruling might have been erroneously  given.

 

Is certiorari, the correct process to be resorted to, to get the error, rectified?  Did the court not have jurisdiction to sit on the application moved before it by the Applicant herein and in the court below?  Is the error, complained of, apparent on the face of the record?   These are questions, the answers to which must be given  to determine whether this application is properly before this court.

 

In the case of REPUBLIC Vrs. HIGH COURT ACCRA; EX-PARTE EASTWOOD LTD [1994-95] GBR.557 at 563 this court set out the basis on which an order of certiorari can be obtained in respect of a Judgment/ruling by the High Court as follows:-

 

“The jurisdiction of the High Court can, therefore only be taken away by specific legislation.  If therefore, there is an error of law appearing on the face of the record of a superior court which warrants intervention by this court by the exercise of our supervisory jurisdiction, it must be such an error as goes to the wrong assumption of Jurisdiction or the error is so obvious as to make the decision a nullity.”.

 

Where the proceedings are regular, a charge that the trial court had reached a wrong conclusion by itself would not constitute sufficient ground for the grant of the order.  See the case of THE REPUBLIC Vrs. COURT OF APPEAL, ACCRA; EX-PARTE: TSATSU TSIKATA [2005-2006] SCGLR 612.

 

“It is plain that certiorari will not issue as the cloak of an appeal in disguise.  It dos not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings.  It exists to correct error of law where revealed on the face of an order or decision, or irregularity,  or absence of, or excess of jurisdiction where shown…………… Dictum of Morris L.J. in the case of REX  Vrs. NORTHUMBERLAND

 COMPENSATION APPEAL TRIBUNAL; EX-PARTE SHAW [1952] 1 K.B. 338 at 357.

 

In our local case of REPUBLIC Vrs. HIGH COURT; Accra: EX-PARTE: INDUSTRIALIZATION FUND FOR DEVELOPING COUNTRIES AND ANOTHER [2003-2004] SCGLR.348 this court held that:-

 

“Certiorari is a discretionary remedy which would issue to correct a clear error of law on the face of the ruling of the court; or an error which amounts to lack of Jurisdiction in the court so as to make the decision a nullity.     In the case of errors of law or fact not apparent on the face of the ruling the avenues for redress is by way of appeal…………….

 

If the applicants disagreed with the ruling, the remedy open to them in the circumstances of the case, was by way of appeal.”

 

See also the case of THE REPUBLIC Vrs. HIGH COURT; EX-PARTE: COMMISSION ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE [ADDO INTRESTED PARTY] [2003-2004] SCGLR. 312.

 

In the instant case, what is the error complained of?  Learned Counsel contends that the learned trial Judge’s statement with reference to S.48[1][b] of the Chieftaincy Act of 1971 [Act.370] that:

 

“for a paramount chief to form or create a Traditional council, he should be recognized by the Minister responsible for Chieftaincy Affairs and his name published in the Local Government Bulletin”,  on the face of the ruling renders the ruling erroneous in law as the section has been repealed by Article 270[2] of the 1992 constitution .

 

With all due deference  to Counsel, the ruling of the court is not dependent on the repealed section to render it amenable to certiorari on ground of error on the face of the ruling.  The learned Judge based his ruling on the fact that the issue before the court has no relation to section 66 of the Chieftaincy Act. which defines  “cause or matter affecting chieftaincy”

 

This is what the learned Judge said:

“The issue before this court is whether or not there is only one Traditional Council or 4 Traditional Council in Akwapim area.  As analysed above, determination of this issue has no relation to section 66 of chieftaincy Act.  This court has jurisdiction to determine same.”

 

The learned judge  referred to section 48[1] and [2] of Act.370 which reads as follows:-

          “A chief is an individual who has, in accordance with customary law, been nominated, selected and installed as a chief or as the case may be appointed and installed as such and whose name for the time being, appears as s chief on the National Register of Chiefs;

 

Provided that no person shall be deemed to be a chief for the purpose of the exercise by him of any function under this Act or under any other enactment, unless he has been recognized as such by the Minister by notice published in the Local Government Bulletin.

 

[2]     Subject to the foregoing sub-section[1] the name of any person who has been installed as a chief shall be entered by the National House of chiefs in the National Register of Chiefs not later than one month from the date of receipt of the notification of such installatio”.  Thereafter he also referred to Art.277 of the Constitution as to the definition of a chief.  From the said definition the judge went on to say that  “Consequently, the registration of a chief’s name in the National register of chiefs and recognition by the Minister of Chieftaincy Affairs is no longer a precondition for a person to be a chief.”

 

It is rather strange therefore for the judge to continue that before a chief can perform any function under Act.370 or under any other enactment, that chief should be recognized as such by the Minister by notice in the Local Government Bulletin.

This admittedly is an error but I do not think the error informed his ruling that

 the matter before the court is not a matter or cause affecting chieftaincy”

Assuming the trial Judge erred in so holding is the error apparent on the face of the record?

 

Attached to this application are the Writ of Summons, the statement of claim, the motion to set aside the writ, the affidavit in support of the motion, the affidavit in opposition and the ruling which the applicant is praying this court to quash for the reason that the court has wrongly assumed jurisdiction.

 

From the writ of summons and the attached statement of claim, the plaintiff’s claim is not over a dispute relating to any of the matters constituting  “Cause or matter affecting chieftaincy under section 66 of the chieftaincy Act.

 

The statement of claim acknowledges the status of the Applicants as chiefs and their constitutional relations under customary law between them and the plaintiffs.

See paragraphs 2,3,4 of the statement of claim.

 

The plaintiff’s claim is that it is the only lawful statutory body created for the Akwapem Traditional Area under the chieftaincy Act and therefore the Applicants’ acclaimed Traditional Councils are illegal.

 

From the writ and statement of claim, I do not think that the judge erred when he ruled that the issue before him is whether or not there is only 1 Traditional council or four Traditional councils in the Akuapem Traditional Area.  Even if he did, the error is not apparent on the face of the record and certiorari will therefore not issue to quash the ruling that determination of that matter does not fall within a “cause or matter affecting chieftaincy.”

 

My attention has been drawn to the case of  REPUBLIC  Vrs. HIGH COURT, DENU; EX-PARTE: AVADALI  IV which I have had a look at.

 

In this case, the Respondents brought an action at the High Court, Denu for a declaration that the 1st Respondent was the hlotator or head of the whole Anyigbe clan of the Agave Traditional Area [ATA] and thus entitled to manage all the lands and other properties of the clan; perpetual prohibitive injunction restraining the applicant from claiming falsely that he was the hlotator/head of the Anyigbe clan and damages suffered by the first respondent.

Upon entry of conditional appearance by the applicant, he moved the court to strike out the action on the ground that the respondent’s claim was a chieftaincy matter and therefore the High Court lacked jurisdiction to try it.

 

The motion was accompanied by an affidavit to which was Exhibited a number of documents including letters, the report on an arbitration held by the Agave Traditional Council [ATC] unto the purported enstoolment of the first respondent as hlotator with the Stool name of Avadali II an Extract from the Gold Coast Chief List.

The trial Judge dismissed the motion on the ground that the matter was not a cause or matter affecting chieftaincy.

 

In an application to the Supreme Court for an order of Certiorari to quash the decision of the trial court, the Court held that;

“the first respondent’s claim that he was entitled to manage all the lands and properties of the Anyigbe clan was dependant entirely on his substantive claim to be declared the hlotator of the Anyigbe clan.  But it was clear from the report on the arbitration held by the ATC and the Extract from the History of Agave that the status of the Head or hlotator of the Anyigbe Clan was regarded as a Chiefly  one……………

 

Furthermore, since the claim by the respondents that the first respondent was the “hlotator of the whole Anyigbe Clan” would require evidence from the respondents to prove that he had been properly nominated, elected and installed as the hlotator of the Anyigbe Clan, it was a cause or matter affecting Chieftaincy within the definition of section 66 of the Chieftaincy Act, 1971 [Act.370] ……………………”

Accordingly, Certiorari would be granted to quash the decision of the High Court to assume Jurisdiction in the case.

 

In the above case, the error from the record is patent on the face of the record.  The 1st respondent’s substantive claim as Wotator/head of the Anyigbe clan was being hotly disputed and if the Wotator is a Chief, then clearly the dispute falls within a “cause or matter affecting chieftaincy.

 

In the instant case, the plaintiff is not disputing the chiefly status of the Applicants.  His complaint is that there is only 1 Traditional council and that is the plaintiff.  That the Applicants’ Traditional Councils are illegal bodies, and if they are, the Applicants cannot claim to be their “Amanhene.”

 

What is more, Traditional Councils are Creatures of Statute and that the Plaintiff is the only Statutory Traditional Council in the Akwapim Traditional Area under the chieftaincy Act.

 

Indeed, under section 12 of the Chieftaincy Act. [Act 370],

            [1]      “There shall be a traditional Council in each traditional area.”

          [2]     “The name and members of each Traditional Council shall be stated in the National Register of Chiefs maintained under section 59 of this Act.

 

To determine the issue before the court therefore, the court would not resort

to the Regulations made under the Act. i.e. Chieftaincy/Proceedings and

Functions [Traditional councils Regulations, or the Chieftaincy [National and Regional Houses of Chief] procedure Rules, 1972 [C.I. 127] as counsel contended.

 

It is for  the reasons herein assigned that I am of the view that the

application ought to be dismissed and I accordingly dismiss same.

 

R. C. OWUSU (MS)

(JUSTICE OF THE SUPREME COURT)

 

 

 

 

JONES DOTSE J.S.C:-

 

On the 18th of June, 2007, the Interested Party herein, therein Plaintiff, issued a  writ of summons  directed at the Applicants herein, therein Defendants, in the High Court Koforidua, claiming the  following reliefs:-

  1. A declaration that the Plaintiff body (that is the Akwapim Traditional Council is the only lawful and statutory Traditional Council in Akwapim.
  2. A declaration that  the Defendants  so called Traditional Councils namely Akwapim Anafo Traditional Council, Okere Traditional Council and Akuapem Guan Traditional Council respectively are illegal and void.
  3. An injunction restraining the Defendants from using, operation as dealing in or in any way claiming through the said respective councils.
  4. An injunction restraining the Defendants from claiming to be Omanhene or Presidents of the said respective Councils.

 

In a twenty paragraphed statement of claim, the Interested Party herein stated the facts upon which they sought the reliefs against the Applicants herein.

 

After entry of Conditional appearance, the Applicants  on the  24th day of  July, 2007 applied to  the High Court  Koforidua and sought to set aside the writ of  summons referred to supra on the  grounds  that the High Court lacked jurisdiction to hear and determine the  suit  because  it was a cause or matter affecting Chieftaincy.

 

However, the High Court, Koforidua, on the 13th day of December, 2007 dismissed the application to set aside the writ of summons and held that the High Court had jurisdiction to entertain it.

 

It is  this decision of the High Court, Koforidua that the Applicants are seeking  to quash by Certiorari pursuant to  Article 132 of the Constitution, 1992, which provides  as follows:-

“The Supreme Court shall have supervisory jurisdiction over all courts and over any adjudicating authority and may, in the exercise of that supervisory jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory Power”.

 

Basing themselves on the clear provisions of Article 132 of the Constitution 1992, the Applicants allege that,

  1. The learned Trial Judge sitting  at the High Court, Koforidua, erred in law by holding that the matter before him was not a cause or matter affecting chieftaincy,
  2. And by virtue of the said error wrongly assumed jurisdiction in the suit, which according to the Applicants is a cause or matter affecting chieftaincy.

 

There is no doubt, that Sections 15(i) and (ii) and 23 1(a) and (b) of the chieftaincy Act, 1971 Act 370 now repealed by the  Chieftaincy Act, 2008, Act 759 confers exclusive original and of appellate  jurisdiction in causes  and matters affecting chieftaincy on Judicial  Committee’s of Traditional and Regional Houses of Chiefs.

 

Section 76 of the Chieftaincy Act, 2008, Act 759, defines a cause or matter affecting chieftaincy to mean,

“any cause, matter, question or dispute relating to any of the following:-

  1. the nomination,  election, selection or installation of any person as a chief or  the claim of any person  to be nominated, elected, appointed or installed as a  chief,
  2. the  deposition or abdication of any chief,
  3. the right of any person to take part  in the nomination, election, selection or installation of a person as a chief or in the deposition of a chief,
  4. the recovery or delivery  of stool property in connection with any such nomination, election, selection, installation, deposition or abdication, of a chief and
  5. the Constitutional relations under customary law between chiefs” emphasis supplied.

 

The same definition is contained in Section 117(1) (a-e) of the Courts, Act, 1993, Act 459.

 

Furthermore, Section 57 of the Courts Act, 1993 Act 459 contains serious limitations on the jurisdiction of the High Court among other Courts in dealing with causes or matters that affect chieftaincy.

 

It provides as follows:-

“Subject to the provisions of the Constitution, the Court of Appeal, the High Court, Regional Tribunal, a Circuit and District Courts shall not have jurisdiction to entertain either at first instance or an appeal any cause or matter affecting chieftaincy”.

 

This therefore connotes a complete ouster of the jurisdiction of the High Court in such related chieftaincy matters as have already been referred to supra.

 

There is no doubt that Article  132 of the Constitution 1992, confers jurisdiction on  the Supreme Court to have supervisory jurisdiction over all courts and other adjudicating authority and also has power to issue  orders and  directions to ensure compliance and or  enforcement of its supervisory jurisdiction.

 

From the facts of this case, can it be said that the decision of the High Court, Koforidua dated 13th December, 2007 is amenable to Certiorari from this Court?

 

The sole ground for the relief of Certiorari in this case is that the learned trial judge erred in law.

 

One question which immediately comes to my mind is whether such an error is apparent on the record.

 

Having apprized myself of the Ruling of the learned trial judge, I am of the considered opinion that the said Ruling contains errors of law which are patent on the face of the record. And as a result of these errors of law, Certiorari can lie to quash the said decision.

 

For example, the decision of the learned High Court Judge that

“For a paramount chief to form or create a Traditional Council he should be recognized by the Minister responsible for Chieftaincy Affairs and his name published in the Local Government Bulletin. See S.48 (1) supra”. is palpably wrong in law.

 

The Section 48(1) is a reference to Section 48(1) of the repealed chieftaincy Act, Act 370.

Continuing further, the learned trial Judge stated that the High Court has jurisdiction to find out whether a paramount Chief has been recognized by the     Minister for Chieftaincy Affairs and whether the chief’s name is published in the Local Government Bulletin.

 

Having stated correctly that, it is only when the relief claimed in a suit is cognizable under section 66 of the Chieftaincy Act, Act 370 which deals with whether or not an issue is a matter or cause affecting chieftaincy that the High Courts jurisdiction is ousted, the court then makes a judicial somersault by misconstruing the issues before him to only one issue, to wit, whether or not there is only one Traditional Council or four Traditional Councils in Akwapim area.

 

By wrongly stating the law and the issue before him, the learned trial judge definitely fell into error and erred by assuming jurisdiction into a matter which is entirely and potentially a cause or matter affecting chieftaincy.

 

That being the case, the High Court did not have jurisdiction in the matter. In coming to the conclusion that the learned trial High Court Judge erred, I have also considered in detail the entire decision juxtaposing it against the time tested principles for the grant or refusal of the order of Certiorari by this Court over superior courts such as the high court.

 

For example, the decision the subject matter of this Certiorari had been given contrary to the clear provisions of  Article  270 (2) (a) and (b)and (3)(a) and (b) of the  Constitution 1992.

 

These provisions have withdrawn Executive recognition of chiefs which was the regime under Act 370 which the learned trial Judge made reference to.

 

Thus, it has to be noted that, the  Constitution 1992, has actually repealed all the provisions  of Act 370 that  confer Ministerial  recognition and  control of gazetting  or registering chiefs which was the  scenario before the coming into force of the Constitution on 7th January 1993.

 

Even though, the said decision is appealable and an appeal was indeed filed but later withdrawn, I do not think that the Applicants are foreclosed from seeking the Supervisory jurisdiction of this court.

 

I have apprized myself of the dicta of my brother, Date-Bah J.S.C in the unanimous decision of the Supreme Court in the case of

REPUBLIC vs HIGH COURT, ACCRA, EX-PARTE CHRAJ,

[2003-2004] SCGLR 312 where it was stated as follows:-

“The court would re-state the law governing exercise of judicial review as follows:- Where the High Court, (or for that matter the Court of Appeal) has made a  non-jurisdictional error of law, which was not patent on the face of the record (and by the  record was meant the  document which initiated  the proceedings, pleadings if any, and the  adjudication but not the evidence nor the reasons unless the  tribunal chose to incorporate them) the avenue for redress open to an aggrieved party was  an appeal, not judicial review. Therefore, certiorari would not lie to quash errors of law which were not patent on the face of the record and which had been made by a superior court judge who was properly seized of the matter before him or her. In that regard, an error of law made by the High Court or the Court of Appeal would not be regarded as taking the Judge outside the courts jurisdiction, unless the court had acted ultra vires the constitution or an express statutory restriction validly imposed on it”.

The Supreme Court in the case of Republic vrs Court of Appeal Accra, ex-parte Tsatsu Tsikata [2005-2006] held per Georgina Wood J.S.C. as she then was as follows:-

The clear thinking of the Court is that our supervising jurisdiction under article 132 of the 1992 Constitution should be exercised only in those manifestly plain and obvious cases where there are patent errors of law on the face of the record, which errors either go to jurisdiction or are so plain as to make on the impugned decision a complete nullity.

It stands to reason that the reason then that the record(s) of law alleged must be fundamental, substantial, material grave or so serious as to go to the root of the matter. The error must be one on which the decision depends. A minor, trifling, inconsequential or unimportant error or for that matter an error which does not go to the core or root of the decision complained of, or stated differently on which the decision does not turn, would not attract the courts supervisory intervention”

 

Applying these decisions to the instant case reveals that the errors being complained of by the applicants herein are errors upon which the entire decision depends. In other words, the errors are so basic and fundamental to the decision that was given by the learned High Court Judge. 

This is because the Court Acts, 1993 Act 459 section 57 thereof, as amended by the Courts (Amendment) Act, 2002 Act 620 already referred , to supra, has completely ousted the jurisdiction of the High Court in causes, matters and disputes affecting chieftaincy.

 

In the instant application, it would be noted that, the High Court had before it, the writ of summons and the Statement of Claim which the Interested Parties herein had filed before it. The High Court also had the benefit of all the statutes on the jurisdiction of the High Court referred to.

 

It appears quite clear to me that the issues  before  the High Court, contained in the writ of summons and statement  of claim, are matters  concerning the constitutional relationships between the  Interested Parties, as a statutory  body of chiefs  created by statute,  and the Applicants herein, therein Defendants as chiefs, Divisional or paramount as the case might be.

 

There was no way the High Court was going to determine the reliefs in the suit without considering those constitutional relations under customary law between the Interested Parties and the Applicants. See Section 117(i) (e) of the Courts Act, 1993 Act 459.

 

I would therefore decide that since the High Court has made a non-jurisdictional error of law which was patent on the face of the record, certiorari would lie.

 

 

Taking a further cue from the decision of the Supreme Court in the case of

REPUBLIC

 

vs

HIGH COURT (FAST TRACK DIVISION) ACCRA

EX-PARTE: ELECTORAL COMMISSION

METTLE-NUNOO & OTHERS, [2005-2006] SCGLR 514, at 516

I am emboldened to state that in considering applications under Article 132 of the Constitution 1992, this court should not only be guided by the principles which have been re-stated in the Ex-Parte CHRAJ case, reference [2003-2004] SCGLR 312 but also to ensure that the Supreme Court issues orders and directions in the supreme interest of justice in order to prevent illegalities and a failure of justice. Especially the social policy considerations underpinning the creation of special chieftaincy tribunal to deal with chieftaincy disputes

 

For example, even though an appeal is possible and could be embarked upon, the procedure under article 132 of the Constitution 1992 is a fast, expeditious and less expensive process which should be preferred to the appeal procedure.

 

Whilst I frown upon the growing trend by legal practitioners and litigants, craving to circumvent the appeal process by rushing to this Court with applications under article 132 of the Constitution 1992 seeking the Courts Supervisory jurisdiction, I think the instant is a genuine case where the supervisory jurisdiction has been properly invoked.

 

It should be noted that whilst  the decision of the Supreme Court in the case of the

REPUBLIC

vs.

HIGH COURT, ACCRA EX-PARTE: CHRAJ,

already referred to supra has re-stated the principles and scope of the Supreme Courts Supervisory Jurisdiction over all other Courts and adjudicating  tribunals, the case of

REPUBLIC

vs

HIGH COURT, DENU, EX-PARTE

AVADALI IV, [1993-94] 1 GLR 561

is also very relevant to this case, in that it re-states the scope of the jurisdictional limits of the High Court in handling chieftaincy disputes.

In the Ex-parte Avadali case, the Applicant therein applied to the  Supreme Court for an order of Certiorari to quash the decision of the  High Court,  Denu overruling an objection of the applicant that the respondents claim before the High Court was a chieftaincy matter and therefore the High Court lacked  Jurisdiction to try it.

 

The Supreme Court unanimously granted the application and held that:

“since the claim by the respondents that the  first respondent was the  “hlotator of the whole  Anyigbe clan” would require evidence from the respondents to prove  that he had been properly nominated, elected and installed as the  hlotator of the Anyigbe clan,  it was  a cause or matter affecting chieftaincy  within the  definition of section 66 of the  chieftaincy  Act, 1971 Act 370. Accordingly, as provided by section 52 of Act 370 now re-enacted in section 57 of Act 459, the High Court had no jurisdiction to entertain it. Accordingly, certiorari would be granted to quash the decision of the High Court to assume jurisdiction in the case.” Emphasis.

 

In the instant case, the High Court in Koforidua would also be required to take evidence to establish the correct constitutional relations at customary law between the Applicants herein and the body of chiefs comprising the Akwapim Traditional Council. Since the High Court is not clothed with jurisdiction to embark upon such an exercise, certiorari would lie to quash the decision of the High Court.

 

Under the circumstances, I will grant the application, and the decision of the High Court, Koforidua dated 13-12-07.

In the case intitutled

Suit No. E2/62/07

Akwapim Traditional Council

Vrs 

NANA DJAN KWASI- ABURIHENE

NANA ASIEDU OKOO-LARTEH AHENEASEHENE

NANA OTUTU OKONO IV- ADUKROMHENE

are hereby removed into the Supreme Court for the purpose of their being quashed and same is accordingly quashed by Certiorari.

 

This court further directs that the High Court, Koforidua has no jurisdiction to entertain the said suit since it is a cause or matter affecting chieftaincy over which the High Court has no jurisdiction.

 

 

JONES DOTSE

(JUSTICE OF THE SUPREME COURT)

 

 

BAFFOE BONNIE JSC;

In this case the applicant is invoking the supervisory jurisdiction of the Supreme Court for an order of Certiorari to quash the ruling of the Respondent Court presided over by Bentil J, and delivered on 13/12/2007 in the suit No. E2/02/07 titled; AKWAPIM TRADITIONAL COUNCIL V. NANA DJAN KWASI-ABURIHENE & 2 OTHERS.

The sole ground canvassed by the Applicant before us is stated in the motion paper as follows

“That the learned trial judge erred in law by holding that the matter before him was not a cause or matter affecting Chieftaincy and by reason of the said error wrongly assumed jurisdiction in a cause or matter affecting chieftaincy.”

The application has been brought pursuant to Article 132 of the Constitution 1992 which reads

“The Supreme Court shall have supervisory jurisdiction over all the courts and any other adjudicating authority and may in the exercise of such supervisory jurisdiction issue orders and directions for the purpose of enforcement of its supervisory power.”

The facts giving rise to this application are pretty simple. The Applicant herein – Adukoromhene, together with 2 others, Nana Asiedu Okoo, Larteh Aheneasehene and Nana Djan Kwasi, Aburihene, were hauled before the High Court Koforidua by the Akwapim Traditional Council. The reliefs claimed at the High Court were

  1. A declaration that the Plaintiff body is the only lawful and statutory Traditional Council in Akwapim.
  2. A declaration that the Defendant so-called traditional Councils namely, Akwapem Anafo Traditional Councils, Okere Traditional Council and Akwapem Guan Traditional Council respectfully are illegal and void.
  3. An injunction restraining the defendants from using, operating as, dealing in or in any way claiming through the said respective councils.
  4. An injunction restraining the defendants from claiming to be Amanhene or Presidents of the said respective councils.

 

The Applicant, who was the 3rd Defendant, prayed the court pursuant to Order 9 Rule 8 of CI 47 for an order to set aside the writ on the grounds that

 

“…these matters (in the Statement of Claim) being matters affecting Chieftaincy the High Court has no jurisdiction over same.”

He prayed in aid Section 66 of the Chieftaincy Act…

In his ruling on the motion, the learned trail judge dismissed the application and noted as follows;

“…the issue before this court is whether or not there is only one traditional counsel or 4 traditional councils in Akwapem area. As above, the determination of this issue has no relation to section 66 of the Chieftaincy Act. This Court has jurisdiction to determine same.”

 

It is this ruling that the applicant is impugning by his application before us.

In his 9 page statement of case, Mr. Amarteifio for the applicant has taken the ruling of the trial judge to the cleaners, trying each step of the way to convince us as to why the High Court judge was wrong in saying this was not a cause or matter affecting chieftaincy and why the Supreme Court should exercise its supervisory jurisdiction by issuing the prerogative writ of certiorari.

 

Before going into the merits of the case to determine whether or not this is a cause or matter affecting chieftaincy, the question that comes to mind is whether the applicant is properly before this Court. Has our jurisdiction been properly invoked?

 

Without seeking to encase my answer in any legal niceties, it is my view that the answer is NO.

 

What exactly is the applicant asking this Court to quash by a writ of certiorari? Is it the ruling delivered by the learned trial judge or the writ issued by the respondents? If it is the ruling of the High Court judge that we are being asked to quash, then what will be the basis for so quashing? Is the applicant saying that the trial High Court did not have jurisdiction to pronounce on an application that he himself had brought before him, or that he is dissatisfied with his pronouncement on the application?

 

There is abundant case law on the subject as to when and how the supervisory jurisdiction of this court in the form of certiorari can be invoked.

In the case of Republic v. High Court Ex parte CHRAJ( Addo interested Party) [2003-2004]SCGLR 312 my brother Dr. Date-Bah JSC noted

When the High Court …has made a non-jurisdictional error of law, which was not patent on the face of the record…the avenue for redress open to an aggrieved party was an appeal, not judicial review .Therefore Certiorari would not lie to quash errors of law which were not patent…An error of law made by the High Court would not be taken as taking the judge outside the courts jurisdiction unless the court had acted ultra vires the Constitution or an express statutory restriction validly imposed on it.”

 

On the same subject matter, the Supreme Court in Republic v. High Court , Accra ; Ex parte Industrialization Fund for Developing Countries [2003-2004] 1 SCGLR 348  stated;

“Certiorari is a discretionary remedy which would be issued to correct an error of law on the face of the ruling of the court; or an error which amounts to lack of jurisdiction in the court as to make a decision a nullity. In the case of errors of law or fact not apparent on the face of the ruling , the avenue for redress is by way of an appeal.”

In this case the applicant is praying for an order of Certiorari not because the trial judge did not have jurisdiction to give a ruling on the matter but that he is dissatisfied with the ruling. This may be a ground of appeal but definitely not a ground for certiorari.

 

The judge might have erred in his appreciation of the facts and the conclusions drawn there from. If that is the case, it would be a matter of appeal. It would not be an egregious error on the face of the record to be cured by a certiorari. Where a judge has jurisdiction he has jurisdiction to be wrong as well as to be right and the corrective machinery to a wrong decision in the opinion of a party is an appeal. See Republic v. High Court , Kumasi and Others ; Ex parte Fosuhene. (1989-90) 2 GLR 315.

 

Before I conclude, I wish to note that this special jurisdiction inserted in the Constitution by the framers is being abused by legal practitioners as they invade the courts with applications which clearly they should pursue on appeal. I will therefore reiterate the words of my learned sister Mrs. Wood JSC( as she then was) in the case of Republic v. Court of Appeal; Ex parte Tsatsu Tsikata [2005-2006] SCGLR 612 at pg 619 that,

“The clear thinking of this court is that our supervisory jurisdiction under Article 132 of the 1992 Constitution should be exercised only in those manifestly plain and obvious cases where there are patent errors of law on the face of the record, which errors either go to the jurisdiction or are so plain as to make the impugned decision a complete nullity. It stands to reason that the errors of law alleged must be fundamental, substantial, material, grave or so serious as to go to the root of the matter”

 If practitioners were to appreciate the obvious sense in this statement, I am sure many of  the applications inundating this court and invoking the supervisory jurisdiction of this court will not be brought. If such conducts are encouraged then in the words of my learned  brother ,Dr Date-Bah,

“……….. judicial  review would supplant the system of appeals, which has carefully been laid down in the 1992 Constitution and the Courts Act,1993 (Act 459) as amended by the Courts (Amendment)Act, 2002(Act 620)

 

See the case of Republic v High Court Accra; Ex parte CHRAJ (Addo interested party) [2003-2004] 1 SCGLR 312 at pg 316

It is my view that the application for certiorari before the court is misconceived.  Having so held there is no need to go into the merits of the application. The application is therefore refused.

 

P. BAFFOE-BONNIE

(JUSTICE OF THE SUPREME COURT)

 

 

COUNSEL

STANLEY AMARTEIFIO WITH DINAH QUASHIE-IDUN FOR THE APPLICANT

K. AMOAKO ADJEI FOR THE INTERESTED PARTY